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1997 DIGILAW 214 (CAL)

Falguni Chakraborty v. State of West Bengal

1997-05-20

ASISH BARAN MUKHERJEE

body1997
JUDGMENT The Revisional application preferred under Section 397, Sec, 401 read with Section 482 of the Criminal Procedure Code is directed against the Order dated 1st of March, 1994 passed by Sub-Divisional Judicial Magistrate, Alipore declining to issue process to the accused persona in Case No C-1697 of 1993 under Section 500 of the Indian Penal Code. 2. The case of the petitioner is that he is a respectable member of the society being a whole-time lecturer in the post-graduate department of Anthropology, Vidyasagar University, Midnapore since 1987. Earlier also he acted as a part-time lecturer in the said University. He also received a number of Certificates and other documents in recognition of his reputation in the concerned field. 3 The Opposite Party No. 2 was a student of the petitioner in the academic year 1985-86 when one Chuni Kotal was also a student. The petitioner along with two other lecturers supervised the field-work in that year at Jhargram. The Opposite Party No.2 was also a student of the petitioner while persuading his M.Sc. degree from 1986-88. Chuni Kotal died on 16th August, 1992 while she was a student of M.Sc. Part-II in Anthropology. 4. There was a departmental enquiry against the petitioner which was conducted by Mrs. Justice Manjula Bose (Retd.) which began its sitting on 4th of December, 1992. Earlier, the petitioner was suspended on 28th of August, 1912. Later, suspension was set aside by this Court by Order dated 25th of September, 1992. 5. On 29th January, 1993, Opposite Party No.3 lecturer in the Department of Anthropology in the Vidyasagar University since 1990 and later Head of the Department from 6th of March, 1991 submitted in writing before the Enquiring Officer along with enclosures including a letter written by the Opposite Party No.2 dated 20th August, 1992 making imputations against the petitioner affecting his reputation. The said letter was addressed to the Vice-Chancellor of the University with a copy to the Opposite Party No.3. The petitioner's representative, Arunaksha Chakraborty received a xerox copy of the said letter along with other documents on 11th of February, 1993. During the progress of the enquiry, the said letter was presented through Dr. S. Ghorai, Presenting Officer, in presence of the petitioner and many others, all of whom became aware of the imputation made in that letter. The petitioner's representative, Arunaksha Chakraborty received a xerox copy of the said letter along with other documents on 11th of February, 1993. During the progress of the enquiry, the said letter was presented through Dr. S. Ghorai, Presenting Officer, in presence of the petitioner and many others, all of whom became aware of the imputation made in that letter. Later on 7th May, 1993, that letter was put to the Opposite Party No.2 In course of his examination before the Enquiring Officer. 6. It is the contention of the petitioner that the writing of the said letter by the Opposite Party No.2 and publishing of the same by Opposite Party No. 3 making defamatory allegations against the petitioner is defamation and thus, attracting Section 500 of the Indian Penal Code. The revisional application contains a copy of the said letter which makes certain imputations against the petitioner regarding his character including his weakness towards the female students of the University. 7. The petitioner tiled a complaint under Section 500 of the Indian Penal Code against the Opposite Party Nos. 2 and 3 before the SDJM Alipore on 5th October, 1993. Apart from the petitioner himself, three other witnesses were examined but the learned Sub-Divisional Judicial Magistrate refused to issue process against the Opposite Party Nos. 2 and 3 on the ground that exceptions to Section 499 of the Indian Penal ~ode are attracted. 8. Being aggrieved the revisional application has been preferred alleging that the Sub-Divisional Judicial Magistrate failed to, appreciate the facts and misdirected himself In dismissing the petition of complaint when there are prima facie materials In support of an offence under Section 500 of the Indian Penal Code against the Opposite Parties Nos. 2 and 3. He further alleged that there could be no consideration by the learned Magistrate of the exceptions to Section 499 of the Indian 'Penal Code at that stage. 9 The revisional application is contested by the Opposite Parties Nos. 2 and 3. 10. I have given my careful consideration to the submission of the learned Advocates representing the petitioner and Opposite Parties Nos. 2 and 3 and have also gone through the petition of complaint as also the evidence taken under Section 200 of the Code of Criminal Procedure at the time of taking cognizance. 2 and 3. 10. I have given my careful consideration to the submission of the learned Advocates representing the petitioner and Opposite Parties Nos. 2 and 3 and have also gone through the petition of complaint as also the evidence taken under Section 200 of the Code of Criminal Procedure at the time of taking cognizance. On a careful scrutiny of the said materials and impugned order of the learned Sub-Divisional Judicial Magistrate, it appears to me that the learned Magistrate misdirected himself in considering the exception Nos. 1 and 8 to Section 499 of the Indian Penal Code in the stage of issuing process under Section 202 of the Criminal Procedure Code. The scope of a Magistrate taking cognizance of an offence at the stage of Section 202 Cr. P.C is very limited. He is to see whether there is a prima fade case to go to trial and not prima facie materials for awarding a sentence. The consideration of exceptions to Section 499 I.P.C. is not available to the Magistrate at that stage. The exceptions are required to be pleaded and proved by t he concerned accused at the time of trial. At this stage under Section 202 Cr. P.C. when the accused has got no say in the matter the Magistrate taking cognizance cannot take up the case of accused and consider whether the exceptions are there or not. 11. The learned Sub-Divisional Judicial Magistrate took recourse to exceptions Nos. 1 and 8 to Section 499 of the Indian Penal Code. The first exception runs thus : – “It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or net it is for the public good is a question of fact”. Before this exception is to be accepted in order to negative an offence under Section 499 of the Indian Penal Code, prima facie materials are required to be proved by a person taking recourse to the said exception. At the stage, under Section 202 Cr. P.C. the accused is not in the picture and there was no material before the learned Magistrate that the imputation made is true or that it is for public good that there should be publication. 12. At the stage, under Section 202 Cr. P.C. the accused is not in the picture and there was no material before the learned Magistrate that the imputation made is true or that it is for public good that there should be publication. 12. The exception No.8 reads as follows :– It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over-that person with respect to the subject matter of accusation.” In order to prove this exception, it is to be proved by the concerned accused that he made the accusation in good faith, apart from the same being made before a lawful authority. The learned SDJM was swayed away with the letter published by way of its presentation before the Enquiring Officer in course of hearing of the departmental proceeding. But, this fact alone which was available at that stage does not prove exception No.1 or even the exception No.8 so far as it relates accusation having been made in good faith, On the other hand, if the said letter as also the evidence of the petitioner and three of his witnesses are considered in true perspective, there are prima facie materials for issuing process under Section 500 IPC. 13. In this connection, reference has been made to some decisions and also to some provisions of the Vidyasagar University Act, 1991. Section 10 of the said Act defines the power of the Vice-Chancellor. It is contended that the Vice Chancellor by virtue of the power given to him ordered the departmental proceeding. In course of such proceeding, the said letter was published and the writer of the letter was examined. But, this fact alone cannot exonerate the writer or the publisher from any liability unless that can come within the exceptions to Sec. 499 of the Indian Penal Code which can be considered only at the time of trial when the accused persons are to take the defence and claim themselves to be covered by the exceptions. In this connection, reference may be made to a decision being (1) Balaraj v.Moti Ram reported in AIR 1971 SC 1387 which deals with the scope of Sec. 202 of the Criminal Procedure Code. It is a case also under Sec. 499 of the Indian Penal Code. In this connection, reference may be made to a decision being (1) Balaraj v.Moti Ram reported in AIR 1971 SC 1387 which deals with the scope of Sec. 202 of the Criminal Procedure Code. It is a case also under Sec. 499 of the Indian Penal Code. It has been held that the question as to the applicability of exceptions to Section 499 of the Indian Penal Code can arise only during commencement of trial. At the stage of enquiry, it is to be seen whether there is a prima facie case on the basis of the complaint. The decision of (2) Surender Mohan v. A.L. Chopra reported in AIR 1978 SC 886 is not exactly applicable in the present case since there is no question of any limitation as the petition of complaint was filed well within three years from the date of the making of the imputation. The decision of C.P. Singh v. P.C. Bose reported in AIR 1430 also deals with the scope of an enquiry under Sec.202 of the Criminal Procedure Code. The decision of (3) S. Singh v. State of Punjab reported in AIR 1966 SC 97 is different from the present one since it was a case when there was a full trial and the scope of exceptions were considered at the stage of trial. It cannot be gain said that in course of trial, in an offence under Section 500 IPC, the exceptions to Sec. 499 IPC are available to the accused persons and it is for them to establish that they come within the exceptions. We are concerned with the available materials to be considered at the stage of a proceeding under Section 202 of the Criminal Procedure Code when there is no scope for the learned Magistrate taking cognizance to consider the exceptions since there being no accused before learned Magistrate, there is none to plead the Ingredients of those exceptions. Therefore, the impugned order of the learned SDJM, Allpore, cannot be sustained being illegal as also perverse. In the result, the revisional application stands allowed on contest. The impugned order of the learned SDJM, Alipore, dated 1st of March, 1994 passed in Criminal Revision Case No. 1697 of 1993 is set aside. The learned Sub-Divisional Judicial Magistrate is to proceed in accordance with Sec. 202 of the Cr. In the result, the revisional application stands allowed on contest. The impugned order of the learned SDJM, Alipore, dated 1st of March, 1994 passed in Criminal Revision Case No. 1697 of 1993 is set aside. The learned Sub-Divisional Judicial Magistrate is to proceed in accordance with Sec. 202 of the Cr. P.C on the basis of the materials already on record without being influenced by any of the exceptions to Sec. 499 IPC in accordance with law- and in the light of the observation made in the body of the judgment. Let the L.C.R. be sent down immediately.